wrote the following letter, which was received by the respondents' attorney on the 9th. "KENT STREET, KENDAL, October 8th, 1860. "SIR,-The overseers of the poor of Applethwaite, in the township of Windermere, in the county of Westmoreland, have received a notice that the respondents intend to move the Court to amend the fifth ground of settlement; and, if the appeal proceeds, the service of such notice will be admitted. It is necessary, however, that I should state to you that the notice of appeal has been given to the next General Quarter Sessions of the peace, to be holden in and for the West Riding of the county of York, at Leeds, in the said county; since the service of which notice it has occurred to me that, Leeds having a separate Court of Quarter Sessions as a borough, the appeal ought to have been tried there, and cannot, without your consent, be tried at the Quarter Sessions for the county. I have therefore to ask you if you will consent to waive this objection, and permit the appeal to be tried pursuant to the notice of appeal which we have given. If not, the Sessions for the county having no jurisdiction, you will consider this a notice. that the appeal is abandoned. In case the appeal proceeds, I shall, of course, admit the service of the order and grounds of removal, you admitting the service of notice and grounds of appeal; and I am prepared also to abandon some of the grounds of appeal stated. An immediate answer will oblige "Yours obediently, "CH. NAYLOR, Esq., Solicitor, Leeds." 66 RICHARD WILSON." To which the respondents' attorney replied as follows: 66 'LEEDS, October 9th, 1860. "SIR, I cannot advise my clients to consent to this appeal being tried by the Court of Quarter Sessions for the West Riding of the county of York. I shall, therefore, on behalf of the respondents, accept your letter of yesterday, received this morning, as a notice of abandonment of your appeal, as requested by you. Yours, &c. "CHARLES NAYLOR." The Leeds Borough Sessions were held on 10th October, and, the appellants not appearing, the respondents moved by counsel that the appeal be dismissed with costs. Thereupon the Recorder made the order in question, which, after reciting the order of removal and the notice of appeal in the terms above set out; that the appellants had subsequently abandoned the appeal; and that satisfactory proof of the above had been adduced at the General REG. v. RECORDER OF LEEDS. [ *563 1 REG. 1. RECORDER [ *564 ] [ 565 ] [*566] Quarter Sessions holden at Leeds, in and for the said borough (being the Court of General Quarter Sessions to which the appeal, if it had been *proceeded with, ought to have been brought, and which Court alone had jurisdiction over the same); proceeded to order the costs in law incurred by the respondents in the said appeal, to be paid to them by the appellants. Notice was sent on the 10th October by the respondents, and received by the attorney of the appellants on the 11th, that the appeal had been dismissed with costs, and that the taxation would take place on Friday the 12th. The trial of appeals had been postponed by the Recorder to that day, but no application was made during the Sessions on behalf of the appellants. The Quarter Sessions for the West Riding were held at Leeds on 15th October. It was sworn by the appellants' attorney that they never had any intention to try at the Borough Sessions; and by the respondents' attorney, that they were prepared to have tried at the Borough Sessions, knowing that those Sessions alone had jurisdiction. J. B. Maule now showed cause. Shaw, in support of the rule: The Recorder had not jurisdiction to make the order, under stat. 12 & 13 Vict. c. 45, s. 6; notice of appeal to this Court not having been given, but to the County Quarter Sessions. The appellants not only did not give notice of appeal to the Borough Sessions, but they never had any intention to try the appeal there. (CROMPTON, J.: How can the intention in the mind of the parties giving the notice have any effect upon the validity or invalidity of the notice itself ?) In Reg. v. Justices of Salop (1) it was held that a notice of (1) 99 R. R. 467 (4 El. & Bl. 257). run up unnecessary costs by attending at the County Sessions, but abandoned the appeal the day before those Sessions. (HILL, J.: That is a material distinction between the two cases. In Reg. v. Justices of Salop (1) the notice of appeal had performed its office, when the appellants appeared at the Sessions for which it was given; but the present appellants did not thus act upon the notice which they had given.) The respondents ought to have applied to the County Sessions for their costs: according to the dictum of ERLE, J. in Reg. v. Justices of Salop (2), who there says, "The Borough Sessions" (the wrong Sessions to try the appeal, but the Sessions notice. of appeal to which had been given) “had so far jurisdiction in consequence of the mistaken notice, that they might have given the respondents costs." (COCKBURN, Ch. J. and WIGHTMAN, J. were absent.) CROMPTON, J.: I am of opinion that this rule must be discharged. After the decision in Reg. v. Recorder of Liverpool (3), the respondents, on the receipt of the notice of appeal, were entitled to suppose that, notwithstanding the mistake in it, they would be called before the right tribunal, namely, the Leeds Borough Sessions. The Recorder of Leeds had jurisdiction over the appeal, and it is clear that, upon the abandonment of the appeal, he had jurisdiction to make an order, giving the respondents their costs. I cannot see how we can say that the Recorder was wrong, unless we overrule Reg. v. Recorder of Liverpool (3). No doubt, if Mr. Wilson's letter to Mr. Naylor, of 8th October, 1860, had been written earlier, it would have prevented the respondents from incurring costs in preparing to resist the appeal: but the delay does not prevent the costs so incurred, up to the time. of the receipt of the letter, from being costs to which the respondents were entitled. Inasmuch, however, as that letter ought to have been written more promptly, I think that the rule should be discharged without costs. HILL, J.: I am of the same opinion. We could not make this rule absolute, unless we held that the Recorder had no jurisdiction over the appeal; to do which would be to overrule Reg. v. Recorder of Liverpool (3). The appellants gave a notice of appeal which they might have acted upon as a good notice of appeal to the (1) 99 R. R. 467 (4 El. & Bl. 257). (2) 99 R. R. 470 (4 El. & Bl. 262). R.R.-VOL. CXXII. (3) 15 Q. B. 1070. 54 REG. . RECORDER OF LEEDS. [ *567 ] REG. t'. OF LEEDS. [ *568 ] Leeds Borough Sessions; and the notice of abandonment of the RECORDER appeal gave the Recorder jurisdiction to give the respondents their costs. I think, however, that the rule should be discharged, without costs, on two grounds: *first, because the conduct of the respondents' attorney was disingenuous: secondly, because the affidavit which he has filed, on showing cause, is very improperly prepared, contains mere repetitions of what had already been sworn to, and must have been so framed with a view, not to informing the Court, but to increasing the costs. Rule discharged, without costs. 1861. Jan. 26. 1861. Jan. 26. [ 574 ] [*575 7 REG. v. AULTON. (3 El. & El. 568 −574; S. C. 30 L. J. M. C. 129; 7 Jur. N. S. 238; 3 L. T. N. S. 699; 9 W. R. 278.) [Obsolete decision under s. 21 of the Weights and Measures Act, 1835 (5 & 6 Will. IV. c. 63), repealed by the Weights and Measures Act, 1878 (41 & 42 Vict. c. 49), s. 86. See ss. 28 and 29 of the repealing Act.] OVERSEERS OF EAST DEAN v. EVERETT. (3 El. & El. 574-577; S. C. 30 L. J. M. C. 117; 7 Jur. N. S. 124; 3 L. T. N. S. 700; 9 W. R. 312.) 66 as well" The Poor Relief Act, 1601 (43 Eliz. c. 2), s. 4, empowers "the present as subsequent overseers, or any of them," by warrant from two justices, to levy all arrears due for poor rate, by distress and sale of the offender's goods. The Poor Relief Act, 1743 (17 Geo. II. c. 38), s. 11, enacts that, in case any person shall refuse or neglect to pay the overseers by whom a poor rate is made, any sum at which he is legally rated, the succeeding overseers" may levy such arrears, and out of the money so levied reimburse their predecessors all sums of money expended by them for the use of the poor; Held, that the latter statute does not restrict the power conferred by the former to overseers immediately succeeding those by whom a poor rate is made, but that any overseers, subsequent to those making the rate, are still entitled to procure a distress warrant from justices to enforce payment of arrears of the rate by defaulters. CASE stated, under stat. 20 & 21 Viet. c. 43, by justices in Petty Sessions for the Newnham division of the county of Gloucester. The respondent was summoned by the appellants, the overseers of the township of East Dean, in the said county, for nonpayment of two poor rates for that township, made on 1st January, 1858, and 16th June, 1858, respectively. The overseers who made the said rates continued in office until 25th March, 1859, at which time other persons were appointed, who remained in office until 25th March, 1860, when the appellants were appointed. The respondent appeared in accordance with the summons, and the justices, upon the hearing, decided that *the appellants could not recover the said rates, because they were of opinion that a poor rate cannot be recovered except by those who made it, or by those who may be the overseers in the year next after that in which it was made. The question for the opinion of the Court was, Whether, upon the facts stated in the case, the justices ought to have made an order for the payment of the said rates by the respondent, and to have granted a warrant of distress. Hopwood, for the appellants, in support of the complaint. * * * (No one appeared for the respondent.) COCKBURN, Ch. J.: I am of opinion that the justices ought to have issued their warrant of distress to enforce these rates. But for the language of stat. 17 Geo. II. c. 38, s. 11, no doubt could have arisen on the subject. Under stat. 43 Eliz. c. 2, s. 4, if a person rated to the *poor rate does not pay his quota to the overseers who make the rate, he can be compelled by any subsequent overseers to pay. And stat. 17 Geo. II. c. 38, s. 11, was not intended to abrogate the rights of any subsequent overseers; but, rather, to relieve from liability outgoing overseers who had not collected all the rates accrued due during their year of office: enabling, as it does, the succeeding overseers to do it for them, and reimburse them out of the amount levied. Both common sense and justice require that a man should not be allowed, by delaying payment of a rate lawfully imposed upon him, to evade payment altogether. I am clearly of opinion that the appellants, being "subsequent overseers," are entitled, under the statute of Elizabeth, to enforce payment of arrears of poor rate, though such rate was not made by their immediate predecessors. The case must go back to the justices with that expression of our opinion. Probably, at the hearing of the complaint, stat. 17 Geo. II. c. 38, only, was brought to their notice. (WIGHTMAN, J., was absent.) CROMPTON and HILL, JJ., concurred. OVERSEERS EAST DEAN v. EVERETT. [576] [*577 ] Case remitted to the justices. BATEMAN v. FRESTON. (3 El. & El. 578-588; S. C. 30 L. J. Q. B. 133; 7 Jur. N. S. 391; 3 L. T. N. S. 806; 9 W. R. 311.) [Obsolete decision as to protection of bankrupt from arrest on ca. sa.] 1861. Jan. 21, 24, 26. |